Pursuant to Article 52 of the Criminal Code, a
company may be financially liable for an offence
committed by a private individual who acted in the
company’s name or interest if the offence in
question benefited that company. However, for the
company to become financially liable, a number of
preconditions, both financial and formal, must be
satisfied jointly.
In the first place, it should be kept in mind that the
company may be held liable solely when the
defendant has been sentenced. The sentencing
should be understood to mean the ascribing of the
offence to the defendant and issuance of a decision
specifying the defendant’s punishment and the
criminal remedies applicable to the defendant.
Conditional discontinuance of the proceedings does
not constitute the sentencing but the decision to
refrain from application of the punishment does.
Another essential precondition is the sentencing for
an offence which benefited the company
financially. It is worthwhile to note that in such
case the company which obtained the financial
benefit does not have to be at fault. What counts is
merely the fact that the financial benefit was
actually obtained. It may thus happen that the
company is not aware that it has obtained the
benefit as a result of an offence. For the company
to be held liable, it must be proven that the
sentenced person acted in the company’s name or
interest. The capacity in which that person acted is
of no relevance. She or he can be a proxy, an
employee, a member of the company’s governing
body but also a third party unrelated to the
company. The only fact of relevance is that the
actions of the sentenced person were taken in the
name or interest of the company. The last
precondition for issuing a ruling on the
reimbursement of the benefit to the State Treasury
is for that benefit not to be subject to
reimbursement to another entity. When the benefit
is due to another person, it cannot be awarded to
the State Treasury. The provisions of the Civil Code
stipulate to whom the benefits are to be
reimbursed.
The formal precondition for issuing a ruling on the
obligation to reimburse the benefits is filing of the
relevant motion by the prosecutor (such motion
cannot be filed by another body acting as public
prosecutor). In the absence of the motion, the
court cannot issue a ruling on the basis of Article 52
of the Criminal Code. The prosecutor may file such
motion at the time of filing of the indictment, at
the latest. This is attributable, inter alia, to the
fact that in the case of the filing of the said motion
the company that may potentially be held liable
should be notified of the date of the hearing to duly
prepare its defence. The company may appoint a
legal representative with a view to protecting its
rights as well as file motions and present evidence
independently for the purpose of its release from
liability. Hearing by the court of the testimonies of
the members of the company’s competent bodies is
also obligatory. However, the persons representing
the company may refuse to testify. Such
testimonies may be abandoned, inter alia, when the proceedings are discontinued or when the
company did not benefit financially.
The obligation to reimburse the financial benefit
referred to in Article 52 of the Criminal Code to the
State Treasury is ordered either in full or in part.
However, those benefits cannot be awarded to any
local government body. The doctrine stipulates also
that the benefit obtained should not be confused
with the potential loss as the resulting loss does not
constitute a precondition for application of Article
52 of the Criminal Code.
As a side note, it should be observed that the
potential obligation to reimburse the financial
benefit can be secured against the company’s
assets. This is a situation that is undesirable in each
case from the point of view of the company’s
operation as it leads to the freezing of the assets
that may prove indispensable for the company’s
everyday activity.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
legislation or other legal development to the particular facts can be verified.